Amid the roiling debate about the Obama administration’s drone program, a former top Pentagon lawyer is weighing in today on the wisdom of adding judicial oversight to the government’s targeted killing activities.
In a speech at Fordham University this morning, Jeh Johnson, who stepped down as chief counsel to the Defense Department in January, acknowledges that many Americans now imagine “dark images of civilian and military national security personnel in the basement of the White House–acting, as Senator Angus King put it, as ‘prosecutor, judge, jury and executioner’…deciding for themselves who shall live and who shall die, pursuant to a process and by standards no one understands.” In a striking acknowledgment of how fast the national political debate has moved, Johnson acknowledges that the government’s anti-terror targeted killing program, once a campaign bragging point for Obama, “risks an erosion of support by the people.”
But in the heart of his speech, Johnson calls himself a “skeptic” when it comes to an idea for gaining support in Congress and policy circles: a “drone court,” modeled after the FISA judicial panel that approves the government’s wiretapping operations. Like some other former government lawyers, Johnson—-whose former job that involved signing off on (or in some cases vetoing) dozens of proposed targets for drone strikes–worries about both the constitutionality and practicality of having judges approve or deny targeting requests that often depend on fast-changing situations and involve a president’s commander in chief powers. He also notes that such a court would have to act in secret, and–like the FISA court–would probably approve most requests, doing little to assuage critics of the drone program.
Johnson also offers three suggestions for how Obama might carry on targeted killing operations with stronger public support. One is to be more transparent. (“Put 10 national security officials in a room to discuss de-classifying a certain fact,” he says, and “they will all say ‘I’m for transparency in principle,’ but at least 7 will be concerned about second-order effects, someone will say ‘this is really hard, we need to think about this some more,’ the meeting is adjourned, and the 10 officials go on to other more pressing matters.”) Second, he advises constraining targeted killing operations within the boundaries of “Congressionally-authorized armed conflict,” although just what that means has become a topic of debate. Finally, Johnson advises an institutionalized process for making targeted killing decisions, apparently along the lines of the “playbook” that newly-confirmed CIA director John Brennan has been devising.
The legal and policy details of Johnson’s thoughts are interesting and useful. But ust as interesting is the political implication of his address. Johnson is in effect warning his former colleagues that public opinion is turning fast, and they’d better do something about it even faster.